Fins-IPG-28 Petition for rehearing (Oct 1999) [ARGUED SEPTEMBER 7, 1999 DECIDED SEPTEMBER 13, 1999] No. 98-5136 --------------------------------------------------------- --------------------------------------------------------- IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT -------------------- VIGDOR SCHREIBMAN, Plaintiff - Appellant, v. DAVID L. HOLMES, ET AL. Defendants - Appellees. -------------------- On Appeal from the United States District Court for the District of Columbia -------------------- APPELLANT’S PETITION FOR REHEARING AND SUGGESTION FOR REHEARING IN BANC -------------------- Vigdor Schreibman, pro se 18 - 9th Street NE #206 Washington, DC 20002-6042 Phone: 202-547-8715 Email: fins98@worldnet.att.net URL: http://sunsite.utk.edu/FINS/ TABLE OF CONTENTS PAGE CONCISE STATEMENT OF THE ISSUES AND THEIR IMPORTANCE ........... 1 ARGUMENT ....................................................... 5 I. THE COMPLAINT IS JUSTICIABLE ........................ 5 II. THE COMPLAINT STATES A VIABLE CAUSE OF ACTION....... 9 TABLE OF AUTHORITIES PAGE Table of Cases AEP Chapter Housing Ass’n v. Berkeley, 114 F.3d 840 (9 Cir 1997)............................. 13,14 Browning v. Clerk, US House of Representatives, 789 F.2d 923 (DC Cir 1986)............................ 3,7,9 Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F.2d 583 (DC Cir. 1970) ............................. 14 Cleveland Bd. of Education v. Loudermill, 470 US 532 (1985)........................................ 10 Consumers Union v. Periodical Correspondents’ Ass’n, 365 F.Supp. 18 (D.DC 1973)........................... passim Consumers Union v. Periodical Correspondents’ Ass’n, 515 F.2d 1341 (DC Cir. 1975)......................... passim Cornelius v. NAACP Legal Defense & ED. Fund, 473 US 788 (1985)................................... 4,10-12 Crawford v. Britton, 118 S.Ct. 1584 (1998)..................................... 4 Dombrowski v. Eastland, 387 US 82 (1967).......................................... 3 Forrester v. White, 108 S.Ct. 538 (1988).................................... 3,7 Gavel v. United States, 408 US 606 (1972)....................................... 7,9 Gregoire v. Centennial School Dist., 907 F.2d 1366 (3 Cir 1990)............................. 4,12 Gross v. Winter, 876 F.2d 165 (DC Cir. 1989)............................. 3,7 Haggerty v. Bloomington, 11 Med. L. Rep., 1605 (Ind. Ct. App. 1985).............. 10 Hornsby v. Allen, 326 F.2d 605 (5 Cir 1964)................................ 6 Kilbourn v. Thompson, 103 US 168 (1881)......................................... 3 Lakewood v. Plain Dealer Publishing Co., 486 US 750 (1988)........................................ 12 Liberty Lobby, Inc. v. Rees, 111 FRD 19 (D.DC 1986)................................... 10 National Association of Social Workers v. Harwood, 69 F.3d 622 (1 Cir. 1995)................................. 7 Perry ED Assn v. Perry Local Educators’ Assn., 460 US 37 (1983)....................................... 4,12 Powell v. McCormack, 395 US 486 (1969)..................................... 3,7 RENO v. American Civil liberties Union, 117 S.Ct. 2329 (1997).................................. 1,10 Scheuer v. Rhodes, 416 US 232 (1974)......................................... 4 Scott-Harris v. City of Fall River, 134 F.3d 427 (1 Cir. 1997).............................. 3,7 Sherril v. Knight, 569 F.2d 124 (DC Cir 1977)......................... 10-11,13 Supreme Court of Virgina v. Consumers Union, 446 US 719 (1980)......................................... 3 Turner Broadcasting System, Unc. v. F.C.C. 512 US 622 (1994)........................................ 12 Walker v. Jones, 733 F.2d 923 (DC Cir 1984).......................... 3,4,7,9 Watkins v. United States, 354 US 178 (1957)........................................ 14 Textbooks Congressional Directory, 96th Cong., 1st Sess., Periodical Press Gallery Rule 2 (1979)................. 6 D.E. Ritchie, Press Gallery (1991)............................. 10 Hawkins, 1 Uniform Commercial Code, section 1-201(28)........................................ 5 CONCISE STATEMENT OF THE ISSUES AND THEIR IMPORTANCE By means of discriminatory conduct and abuse under broad delegated control over Congressional press galleries, a group of established press correspondents (the "media aristocracy") have been empowered to prevent access by other reporters to news sources at the US Capital of vital consequences to the public. The result, says US District Judge Gesell in Consumers Union [1], an opinion which reflects the egregious bias and abuse of the "media aristocracy," of both past and continuing significance, is "to exclud[e] from news sources representation of publications whose ownership or ideas they consider objectionable." This appeal by the first Internet-based writer to seek accreditation from the Congressional press gallery, involves a panel judgment, without opinion, in clear conflict with a host of decisions of this court and the Supreme Court below described. The judgment, involves fundamental constitutional issues of transcendent importance concerning the information role of Congress. It would sustain the historical and continuing unconstitutional conduct of the "media aristocracy," and set a pattern for new, arbitrary regulation of press gallery access by a writer using the global Internet medium, which is entitled to unqualified protection of the First Amendment, RENO v. American Civil liberties Union, 117 S.Ct. 2329, 2344 (1997). The panel says the Executive Committee of Correspondents is entitled to immunity under the Speech or Debate Clause of the US Constitution, "because making decisions about whom to admit to congressional galleries is a legislative function. See Consumers Union v. Periodical Correspondents’ Ass’n., 515 F.2d 1341 (DC Cir. 1975)." The decision of the panel conflicts with the holding in Consumers Union, with the material facts of this case, and with intervening precedent of another federal appellate court. The holding in Consumers Union confirms that it would be "indeed, improper" to consider Speech or Debate Clause immunity separate from the fact that that case "involves matters committed by the Constitution to the Legislative Department"[2]. The rule making power of Congress was challenged by the applicant in Consumers Union, a nonprofit organization, because Gallery Rule 2 limited access to publishers "for profit"[3]. That limit of Rule 2 was overthrown by Congress in 1979. Rule 2 now authorizes access for nonprofit organizations [4], qualifying appellant for a press pass. These mutually exclusive facts are of critical significance to the issue of justiciability here, both under the rulemaking power of Congress and Speech or Debate Clause immunity. The question of whether acts of the Executive Committee in this case are "legislative," and therefore immune, or "administrative" and "adjudicative," and thus justiciable, concerns material facts that are genuinely disputed in this case. Disposition of such a question of fact, "must await trial," Scott-Harris v. City of Fall River, 134 F.3d 427, 440 (1 Cir. 1997), cert. denied, 118 S.Ct. 1184 (1998). The "touchstone," in making a determination of legislative immunity is whether the activities at issue are, "an integral part of the deliberative and communicative process [of Congress]...." Based on that principle, this court has explained that, "the arrangements for seating of the press in House and Senate galleries," qualify decisions about whom to admit to congressional galleries as a legislative function entitled to legislative immunity [5]. However, that explanation directly conflicts with the "strict functional immunity analysis," of intervening decisions by this court and the Supreme Court [6]. Consistent with that strict analysis, a line of Supreme Court decisions [7], establish that the doctrine of legislative immunity does not bar a judicial determination of a plaintiff's constitutional claim to the extent that the claim, as here, is one for prospective relief and is asserted against defendants simply for their role in enforcing a legislative directive that affects individual rights. Finally, the panel also found that appellant failed to articulate the bias or animus that constitutes the claimed "bad faith" exception to legislative immunity left open by Consumers Union, see Id at 1250. In this finding, allegations of the complaint were disfavorably construed, contrary to instructions by the Supreme Court [8]. Moreover, where, as above discussed, the claim to immunity may likely be invalid, the court would have no authority to impose a heightened burden of proof or pleading [9]. On the contrary, heightened First Amendment scrutiny is required both where government policies subject a reporter to special treatment [10], and where there are, as here, inadequate standards for inclusion and exclusion in the press galleries [11]. Press Gallery officials cannot repudiate, with impunity, an independent reporter’s right to First Amendment protection [12]. ARGUMENT I. THE COMPLAINT IS JUSTICIABLE Defendants’ motion to dismiss the complaint is based on the allegation of Attorney Stern not supported by specific findings in the minutes of the Executive Committee decision, J.A. 109-110, claiming that, "The Executive Committee concluded that Mr. Schreibman did not meet the requirements of [the gallery] rules, among other reasons, because FINS was not published for profit ..." J.A., 11, 14. Attorney Stern also argues that the complaint in the instant case is nonjusticiable because the claims in Consumers Union, in fact, were "virtually identical" to those advanced by Mr. Schreibman here [13]. Absurd! In Consumers Union, press credentials for a nonprofit organization were denied under then applicable Periodical Press Gallery Rule 2, which limited access to periodicals published "for profit"[14]. A challenge to that Gallery Rule was nonjusticiable, the court found, "because it involves matters committed by the Constitution to the Legislative Department"[15]. The instant action also involves a periodical operating as a nonprofit organization [16], but this poses no challenge to any legislative functions of the Executive Committee and, therefor, involves no legislative action, because the version of Press Gallery Rule 2, upon which Consumers Union was based, was overthrown by Congress in 1979. Press Gallery Rule 2 now explicitly authorizes accreditation of a periodical published by a nonprofit organization, Congressional Directory, 96th Cong. 1st Sess., Periodical Press Gallery Rule 2 (1979): p. 901. The present status of the case is significantly different from that of Consumers Union. The issue of whether this controversy is nonjusticiable requires the court in the first instance, to "interpret the text in question and determine whether and to what extent the issue is textually committed." Nixon v. United States, 506 US 224, 228 (1993). Appellant alleges that unlike Consumers Union, the instant case involves no challenge to the rulemaking power of Congress, only the process of an application for a press pass involving administrative and adjudicative functions [17]. These material facts on which claimed immunity are dependent are genuinely disputed. Disposition of such matters "must await trial," Scott-Harris, 134 F.3d at 440. The panel ruling, that "making decisions about whom to admit to congressional galleries is a legislative function," is an overly broad construction of the disputed facts without a proper trial. The ruling conflicts with a line of Supreme Court cases, which "reflect a decidedly jaundiced view toward extending the [Speech or Debate] Clause" to shield legislative employees who implement unconstitutional legislative directions [18]. This is particularly significant in a case where the claim, as here, is one for prospective relief and is asserted against defendants simply for their unconstitutional enforcement of legislative rules that affect individual rights [19]. The duties of a reporter and the atmosphere in which they are carried out [20], have previously been marked by this court as critical criteria in deciding whether the functions of the Executive Committee are "integral" to "the legislative machinery" and thus immune from judicial review by virtue of the Speech or Debate Clause [21]. Intervening decisions of this court and the Supreme Court, in Gross v. Winter, 876 F.2d at 170-173 (declining to follow Browning v. Clerk, 798 F.2d at 929), following Forrester v. White, 108 S.Ct. at 544, have ruled that in determining immunity "no weight" will be accorded the duties of the employee "even though they may be essential to the very functioning of the" state institution at issue. The court’s ruling in Browning, is instructive in the instant case because it involved an Official Reporter of the US House of Representatives, whose job duties and the atmosphere in which he worked, similar to those of a news reporter, were deemed to be "’an integral part of the deliberative and communicative process [of Congress],’ Gavel, 408 US at 625, such that the activity is legislative in character." Browning, at 928-929. In Gross v. Winter, this court reexamined its ruling in Browning and decided that the duties of the reporter and their essential relation to the due functioning of the legislative process cannot be used as criteria for qualifying legislative immunity. The Supreme Court’s strict "functional" immunity analysis in Forrester, contrasts with the employee-centric approach the court took in Browning, clearly undermining the holding in the latter, see Winter at 170-171. Similarly, the duties of the news reporter in the instant case and their relation to legislative activities, cannot be used as a basis for determining that the functions of the Executive Committee, which are subject to "strict functional immunity analysis" are yet, "’an integral part of the deliberative and communicative process [of Congress],’ Gavel, 408 US at 625, such that the activity is legislative in character." Browning, at 928-929. The conditions in Consumers Union, which are significantly different from those of the instant case, and the immunity criteria followed in Consumers Union (as described in Walker v. Jones, 733 F.2d at 930), which has been rejected by this court and the Supreme Court, cannot provide a valid basis in the instant case for classifying decisions of the Executive Committee as "legislative functions" entitled to immunity. From the foregoing argument it is clearly evident that Mr. Schreibman has raised a number of issues of material fact in genuine dispute bearing upon the question of whether and to what extent the case is one not justiciable by virtue of the rulemaking power of Congress and immunity conferred by the Speech or Debate Clause. This includes two issues: (a) whether Mr. Schreibman has or has not, in fact, challenged any gallery rule that is textually committed to the legislative branch; and (b) whether the functions of the Executive Committee at issue in this case involve legislative action that qualify for immunity or administrative and adjudicative action that do not. II. THE COMPLAINT STATES A VIABLE CAUSE OF ACTION In carrying out their administrative and adjudicative functions to process Mr. Schreibman’s application for a press pass the Executive Committee must, in the first instance, recognize his right to protection of the First Amendment {22]. The right to protection of the First Amendment is conferred not by legislative grace or by discretion of the Executive Committee holding delegated powers, but "by constitutional guarantee" [23]. It is indisputable that Mr. Schreibman is a bona fide Washington reporter, three times recognized as such by the Executive Committee [24]. He is entitled to the protection of the First Amendment [25], particularly as an Internet-based writer [26]. This fundamental right is threatened when the accreditation of reporters for access to the press galleries is afflicted by a chronic pattern of discriminatory conduct and abuse. The setting for adjudication of press passes by a self-regulated group of established reporters has disclosed the following incidents of special concern: a report on the historical efforts of Washington reporters to use emerging technology "as an excuse to exclude competitors"[27]; relevant judicial findings of actions by established periodical correspondents to exclude publications whose ownership or ideas they consider objectionable [28]; and expert opinion on the new dimension of the Internet medium involving "fundamental changes being wrought by the advent of many-to-many media directly threatening the current media aristocracies and the status quo in much the ways that the advent of democracy did to the aristocracies of two centuries ago"[29]. Congress has designated by its Press Gallery Rules that press gallery facilities, which provide time sensitive access to information of vital consequence to the public and significant competitive advantage to members, shall be generally open as a source of information to bona fide Washington-based newsmen and newswomen. Within this forum Judge Gasell recognized in an opinion that remains binding by the principle of stare decisis that, "The Courts have a responsibility to preserve the freedom of the press by barring the imposition of limitations upon the equal access of newsmen to facts of public consequence"[30]. Equal access to the press galleries is subject to government regulation of the time, place, and manner of the expressive activity to accommodate other legislative uses of press gallery facilities and the "interests of all" members of the designated class who have an equal right to speak on the property [31]. However, laws that single out the press, or certain elements thereof, for special treatment, "pose a particular danger of abuse by the state"32]. The current policy of granting access to the press galleries to some publishers and reporters but not for others, "raise[s] the specter of content and viewpint censorship"[33]. The danger of abuse is underscored when gallery standards and their application are ambiguous and indefinite. For example, the denial of Mr. Schreibman’s accreditation was without specific reasons given by the Executive Committee, J.A., 109-110, but Attorney Stern alleges FINS was not published "for profit," thus deniable under Consumers Union, though the latter followed a version of Gallery Rule 2, which Congress has since overthrown. Moreover, the current gallery policy of requiring annual renewal of accreditation, not sanctioned by any official gallery rules is, "sufficiently threatening to invite judicial concern," because it exposes reporters to measurement of the probable content or viewpoint of speech they have uttered [34]. The attempt by gallery officials to exclude Mr. Schreibman, a bona fide Washington reporter, from the press galleries, which are generally open for use by reporters, while reserving the right to control equal access of the press without "unambiguous and definite standards," must be subject to strict scrutiny [35]. The district court dismissed the instant complaint with prejudice and without leave to file an amended complaint [36]. That decision conflicts with the binding precedent of this court in Firestone v. Firestone, 76 F.3d 1205, 1208-1209 (DC Cir. 1996). Mr. Schreibman’s claims are the following: (A) The application for a accreditation was denied by the Executive Committee without any specific reasons, J.A., 109-110, thereby, violating Mr. Schreibman’s right to due process under the Fifth Amendment to the Constitution [37]. (B) Denial of accreditation is infested with the appearance of institution bias, in violation of Mr. Schreibman’s right to due process under the Fifth Amendment [38]. This bias was manifest by the vicious personal attack on Mr. Schreibman during discussion on the "online news list" (an Internet discussion list of established newspapers to assist in their transition from print to electronic format) just prior to his application for accreditation, in August 1995. The personal attack on Mr. Schreibman was an attempt to censor his ideas and proposal to advance a discussion about the future of news reporting in the Internet medium [39]. Discovery may allow plaintiff to make the evidentiary connections between the institutional bias manifest during the "online news" episode and the later denial of Mr. Schreibman’s application for a press pass by the Executive Committee. This could establish the merit of Mr. Schreibman’s claim for relief. (C) Denial of accreditation is infested with actual bias of the Executive Committee in violation of Mr. Schreibman’s right under the due process clause of the Fifth Amendment [40]. Officials of the press galleries, including superintendent of the House Gallery Mr. David Holmes and Superintendent of the Senate Gallery Mr. Jim Talbert, together with one member of the Executive Committee of Correspondents, Rick Maze, confirmed in face-to-face conference with Mr. Schreibman that the press galleries have adopted a policy explicitly repudiating Mr. Schreibman’s right to protection of the First Amendment [41]. This policy is not authorized by Congress nor included in the Gallery Rules that comprise their charter, thereby, impinging upon Mr. Schreibman’s First Amendment rights [42], and violating his right under the due process clause of the Fifth Amendment to an unbiased adjudication of his application for a press pass, free from prejudgment of law or facts [43]. The defendants’ principal claim, which must pass the test of strict scrutiny, is the following: (1) Attorney Stern alleges that gallery officials denied FINS accreditation because the publication is not published "for profit," as in Consumers Union. In that case the nonprofit applicant was barred by the terms of Gallery Rule 2, but unlike that situation FINS may be accredited under the current version of Gallery Rule 2. Indeed, the Executive Committee approved credentials for another Internet-based periodical, Microsoft’s Magazine, Slate, which disseminates its publications "free of charge," as demanded by the unwritten law of the Internet [44]! Denial of accreditation for FINS has no compelling basis, nor even a logical explanation, except that of censorship because of the bias of the "media aristocracy" and gallery officials against the views expressed by Mr. Schreibman. This basis for denial cannot be sustained under First Amendment protection. Wherefore, petitioner respectfully requests that a rehearing of the appeal in the above-entitled cause be granted; and that the honorable judges of this court order that the above-entitled cause be heard by the court in banc. Respectfully submitted, Vigdor Schreibman, pro se 18 - 9th Street NE #206 Washington, DC 20002 Phone: 202-547-8715 Email: fins98@worldnet.att.net FOOTNOTES: N1 Consumers Union v. Periodical Correspondents’ Association, 365 F.Supp. 18, 26 (D.DC 1973), rev’d on other grounds, Consumers Union v. Periodical Correspondents’ Association, 515 F.2d 1341 (DC Cir. 1975). N2 Consumers Union, 515 F.2d at 1346, 1351. N3 Id., at 1342-1343. N4 J.A. at 24. N5 Walker v. Jones, 733 F.2d 923, 929-930 (DC Cir 1984)(explaining Consumers Union). N6 Compare Consumers Union, 515 F.2d at 1350; and Walker v. Jones, 733 F.2d at 929; and Browning v. Clerk, US House of Representatives, 789 F.2d 923, 928 (DC Cir. 1986) (linking the duties of a reporter with legislative immunity); with Gross v. Winter, 876 F.2d 165, 170-173 (DC Cir. 1989) following Forrester v. White, 108 S.Ct. 538, 544 (1988) (rejecting the duties of a reporter as criteria for legislative immunity). N7 Kilbourn v. Thompson, 103 US 168, 204 (1881); Dombrowski v. Eastland, 387 US 82, 85 (1967); Powell v. McCormack, 395 US 486, 504-506 (1969); and Supreme Court of Virginia v. Consumers Union, 446 US 719, 731-32 (1980. N8 Scheuer v. Rhodes, 416 US 232, 236 (1974), followed in Walker v. Jones, 733 F.2d at 925-926 (quoting Supreme Court instructions that "In passing on a motion to dismiss ... the allegations of the complaint should be construed favorably to the pleader"; nevertheless, at oral argument Judge Silberman rejected as "legal analysis," allegations that defendants’ had "emphatically repudiated [as governing policy of the Press Galleries] both the relevance of any Free Press provisions to the Congressional Press Galleries and the right of plaintiff to any such protections." Brief of Vigdor Schreibman, at 55). N9 See Crawford v. Britton, 118 S.Ct. 1584, 1594 (1998). N10 Turner Broadcasting System, Inc. v. F.C.C., 512 US 622, 640-641 (1994). N11 Gregoire v. Centennial School Dist., 907 F.2d 1366, 1375 (3 Cir. 1990); Perry ED. Assn. v. Perry Local Educators’ Assn., 460 US 37, 48 (1983); Cornelius v. NAACP Legal Defense & ED. Fund, 473 US 788, 823-824 (1985). N12 Redress of grievances under the First Amendment for discriminatory and abusive conduct recognized in Consumers Union, 365 F.Supp. at 26, and alleged in the Brief of Vigdor Schreibman, at Pp. 49-60, must have primacy over the tenuous immunity claims by the Executive Committee. Broad expansion by the panel of Consumers Union, 515 F.2d at 1348, n.16, must be overruled. N13 Brief for Appellees David W. Holmes, at pp. 6, 10-11, 18-23. N14 Consumers Union, 515 F.2d at 1342-1343. N15 Id., at 1346. N16 FINS operated as a nonprofit "organization" J.A., 73-74. As defined under the Uniform Commerical Code the term, "organization," includes "every type of entity ... excluding an individual acting as such." Hawkland, 1 Uniform Commercial Code Series, note to section 1-201(28), at p. 901. Mr. Schreibman was not acting as an individual but doing business as Federal Information News Syndicate (FINS), including the masthead of the periodical, copyright notices, and a bank account in that name. There is a dispute over material facts concerning the intention of Mr. Schreibman to publish FINS "for profit." The Official Form submitted by Mr. Schreibman for his "Application For Membership in the Periodical Press Gallery," J.A., 108, asks whether the publication is published "for profit"? This is marked "Yes." FINS always solcited paid subscriptions and intended to publish "for profit"; however, profitability is not the primary motivation for news publishing via Internet and most news publications in this medium, including FINS, are disseminated "free of charge" by de facto nonprofit organizations, J.A., 73-74, Reply Brief of Vigdor Schreibman, Pp. 9-11. Mr. Schreibman is a bona fide reporter entitled to First Amendment protection, and the denial of his application for a press pass based on ambiguous and indefinite standards must be subject to strict scrutiny, see argument and accompanying authorities infra Pp 9-12. N17 See Hornsby v. Allen, 326 F.2d 605, 608 (5 Cir. 1964). M18 See e.g., Gavel v. United States, 408 US 606, 620 (1972); Powell v. McCormack, 305 US at 501-506. N19 See authorities cited infra note 7; reviewed in National Association of Social Workers v. Harwood, 69 F.3d 622, 636, 638-643 (1 Cir. 1995) (Lynch, J., dissenting). N20 The instant case involves the duties of a news reporter who was denied membership in the Periodical Press Galleries of the US Senate and House of Representatives, while in Browning v. Clerk, 789 F.2d at 928-929 n.13, the suit involved the duties of an Official Reporter of the US House of Representatives who was dismissed from his job. N21 Walker v. Jones, 733 F.2d at 930 (explaining the immunity holding in Consumers Union). N22 Cornelius v. NAACP Legal Defense & ED. Fund, 473 US at 797. N23 Cleveland Bd. of Education v. Loudermill, 470 US 532, 543 (1985). N24 First Amended Complaint, J.A., 70-72. N25 Sherrill v. Knight, 569 F.2d 124, 129, n.19 (DC Cir. 1977) (press pass to House and Senate Galleries relied upon as qualification for White House press pass); Liberty Lobby, Inc. v. Rees, 111 FRD 19, 20-21 (D DC 1986) (party qualified to be treated as "journalist" for First Amendment purposes where he had published and distributed newsletter for many years and was recognized as journalist by others); Cf. Haggerty v. Bloomington, 11 Med. L. Rep., 1605, 1606 (Ind. Ct. App. 1985)(bona fide members of the press determined by previous issuance of press pass). N26 RENO v. American Civil Liberties Union, 117 S.Ct. at 2344. N27 Statement of Donald Ritchie, assistant Senate historian and author of "Press Gallery" Harvard Press, 1991, quoted in The New York Times, Feb. 26, 1996, at D7, col. 1. N28 Consumers Union, 365 F.Supp. at 26. N29 Statement of media expert Vin Crosbie, "On the new dimensions of media," plaintiff-appellant exhibit 7(6). N30 Consumers Union, 365 F.Supp. at 25; accord Sherrill, 569 F.2d at 129-130. N31 Cornelius, 473 US at 817-818 (Blackmun, J. dissenting). N32 Turner Broadcasting System, Inc. v. F.C.C., 512 US 622, 640-642 (1994). N33 Lakewood v. Plain Dealer Publishing Co., 486 US 750, 763-764 (1988). N34 Id., at 759-760. N35 Gregoire v. Centennial School Dist., 907 F.2d at 1375; Perry, 460 US at 48 (1983); Cornelius, 473 US at 823-824 (Blackmun, J. dissenting). N36 J.A., 52, 105. N37 Consumers Union, 365 F.Supp. at 26-27; Sherril v. Knight, 569 F.2d at 130-131. N38 See AEP Chapter Housing Ass’n v. Berkeley, 114 F.3d 840, 844 (9 Cir. 1997) (discussing the two categories of due process challenges based on structural bias, including the appearance of institutional bias and actual bias). N39 Brief of Vigdor Schreibman, at pp. 34-44. N40 AEP Chapter Housing Ass’n v. Berkeley, 114 F.3d at 844. N41 See authorities and relevant panel actions cited infra note 8. N42 Watkins v. United States, 354 US 178, 198 (1957). N43 Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F.2d 583, 591 (DC Cir. 1970). N44 Reply Brief of Vigdor Schreibman, at p. 9-10.